Publishers Association, Google Announce Settlement of Long-Running Digitization Case

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Book publisher plaintiffs and Google Inc. announced a settlement Oct. 4 of a long-running lawsuit over Google's unauthorized digitization of copyrighted books (McGraw-Hill Cos. v. Google Inc., S.D.N.Y., No. 1:05-cv-08881-DC, settlement announced 10/4/12).

The Association of American Publishers and Google released a statement that they have agreed to settle their now seven-year-old dispute. The statement says that Google “acknowledges” the publishers' rights, but does not state specifically whether either side has conceded its position regarding Google's unauthorized scanning and indexing of works constituted fair use.

According to the announcement, under the settlement, a publisher may opt to have Google remove its works from the Google Book Search database. Those publishers that choose to keep their works in the database may request copies of electronic versions of their works from Google.

In settling, Google “acknowledges the rights and interests of copyright-holders.”

The settlement need not be approved by the federal district court adjudicating the matter, the statement said. Further terms were not disclosed as, according to the news release, they were being kept confidential.

“We are pleased that this settlement addresses the issues that led to the litigation,” AAP chief Thomas H. Allen stated in a press release. “It shows that digital services can provide innovative means to discover content while still respecting the rights of copyright-holders.”

The AAP members participating in the settlement were the McGraw-Hil Cos., Pearson Education Inc., Penguin Group (USA) Inc., John Wiley & Sons Inc., and Simon & Schuster Inc.

Dispute Began With Library Deals.

The dispute goes back to 2005, when the Authors Guild, several authors, and publishers brought two class action lawsuits challenging Google's arrangements with several large libraries to digitize the entire contents of their collections and to make the resulting database searchable over the internet.

The complaint alleged that Google was infringing the plaintiffs' copyrights when it scanned copyrighted works without authorization and made plans to offer portions of those materials to the public through an online searchable database, now known as Google Book Search.

In 2008, the Authors Guild and Google reached a settlement allocating rights to the copyrighted materials at issue. The settlement was amended to account for some objections, particularly from overseas authors, but in 2011 the U.S. District Court for the Southern District of New York determined that the terms were not “fair, adequate, and reasonable” with respect to the members of the relevant class that the plaintiffs purported to represent.

Settlement Puts Authors in 'Difficult Bind.'

Pamela Samuelson, a law professor at the University of California, Berkeley, and director of the Berkeley Center for Law and Technology, told BNA that Google's settlement with the AAP in fact puts more pressure on the Authors Guild to settle.

“The settlement with the publishers will put the Authors Guild lawsuit in a more difficult bind than they were before the settlement,” Samuelson said in an email. She added:

They have to defend the class certification to the Second Circuit appellate court before they can get a ruling on the infringement issue. That certification depends heavily on the view that authors own the right to control the making of ebooks of their works, a right that the publishers typically claim that the assignment of copyright in the initial publishing contract belongs to them, not to the authors. By settling with the publishers, Google can claim that this is yet another reason why the class certification was in error.  


By Anandashankar Mazumdar and Tamlin Bason  

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